The Section includes periodically sends email with New Case Alerts to its members. Recent New Case Alerts are listed below. Most cases can be found on the California Courts website. Please note: Opinions more than 120 days old can be found through the process described HERE.
Cite as A151975
Filed June 22, 2018, California Court of Appeal, First District, Div. 1
By Golnaz Yazdchi
Sheppard Mullin Richter & Hampton LLP
Decedent Jerome Norman Post purchased a life insurance policy during his lifetime and named his then-spouse, Angela Post, as the primary beneficiary, and his sons from a prior marriage, Kenneth Post and Eric Post, as the contingent beneficiaries. Decedent was divorced at the time of his death, but he had not changed the beneficiary designation on his life insurance policy to remove his former spouse as the primary beneficiary. He had executed a codicil to his will shortly before his death expressing his strong desire that his former spouse receive nothing from him after his death, including by beneficiary designation. Decedent’s sons sought an Order designating them as the rightful beneficiaries of the decedent’s life insurance policy under Probate Code Sections 5040 and 9611. The trial court found in favor of the sons, and issued an order naming them as the proper beneficiaries of the life insurance proceeds.
The Court of Appeal reversed. The court, sitting in probate, has no jurisdiction over life insurance policies where the decedent’s estate has no interest in the proceeds. A beneficiary under an insurance policy takes under an insurance contract, and not pursuant to the laws of succession. Thus, because the trial court had no jurisdiction over the subject matter of the order (i.e., the life insurance proceeds), the trial court’s order was void.
Cite as G055377
Filed May 29, 2018, Fourth District, Div. Three
By Matthew R. Owens
Withers Bergman LLP
Beverly amended and restated her trust in 2013, naming herself as initial trustee and her son Thomas as her successor. In 2014, Beverly died and Thomas succeeded her as trustee. Beverly’s daughter, Nancy, filed petitions seeking, among other things, to invalidate the trust and to remove Thomas as trustee. After Thomas filed an inadequate accounting, the probate court suspended him and ordered him to turn over all trust records to the interim co-trustees. Although the court order was broad enough to include attorney-client communications between Thomas and his counsel, Thomas refused to produce those communications because a provision in the trust permitted the trustee to withhold privileged communications from a successor trustee. Thomas petitioned for a writ of mandate to reverse the trial court’s order.
The appellate court denied the petition. Under Moeller v. Superior Court, when a trustee seeks legal advice on behalf of a trust, the privilege vests in the office of trustee and the right to assert the privilege passes to the successor trustee. A trust may not allow a former trustee to withhold from a successor trustee communications exchanged between the former trustee and the former trustee’s counsel, and any trust provision seeking to do so violates public policy and is unenforceable. A trust may limit a trustee’s liability to some extent, but not in cases of intentional misconduct, gross negligence, or acts taken in bad faith or with reckless indifference to the interests of the trust’s beneficiaries. Since a trust cannot absolve a trustee of all liability, it also cannot prevent disclosure of the records that may be used to establish liability. In order to protect attorney-client communications, a trustee must retain separate counsel to distinguish personal advice from advice obtained in a fiduciary capacity. Thomas did not retain separate counsel for that purpose and therefore had to produce all trust records to his successor.
Cite as D072298
Filed April 27, 2018, Fourth District, Div. One
By Daniel C. Kim
Weintraub Tobin Chediak Coleman Grodin Law Corporation
Decedent Norman Casserley and Paul Blazevich were neighbors. In 1997, Decedent was convicted of a crime and ordered to pay Blazevich restitution. Ten years later, Blazevich recorded the order and then obtained an amended order which increased the restitution award. In 2008, Blazevich executed and recorded an assignment of the original (but not the amended) order to his wife Emerita Cruz Joya. The amended order was not recorded until after Casserley’s death in 2015. Casserley died intestate, and the estate’s only asset was a modest house, which the administrator sold. The estate was insufficient to pay all claims. Joya filed a creditor’s claim based on the initial order, which was allowed and paid, and an amended claim based on the amended order, which the administrator denied. Joya objected to the administrator’s final accounting, arguing that the post-death recordation of the amended order created a lien on all probate assets. She also argued that, under the Constitution’s restitution provision, her claim to payment of restitution was entitled to priority over other creditors’ claims filed by the state and county. The trial court rejected both arguments.
The appellate court affirmed both rulings. The recordation of an abstract of judgment after the debtor’s death does not create a lien on the debtor’s estate property and, therefore, the recordation of the amended order did not create a lien on estate assets because it was recorded after Casserley’s death. Second, the appellate court evaluated the legislative history of the Constitution’s restitution provision and pertinent statutory schemes and found that the administrator’s sale of the decedent’s house did not constitute “collection of money” for purposes of the Constitution’s restitution provision. Therefore, Joya’s claim did not have priority over other claims.
Cite as 22 Cal.App. 5th 92
Filed April 10, 2018, Second District, Div. One
On August 21, 2015, Gordon B., a 75-year-old disabled veteran, obtained an elder abuse restraining order against his neighbor, Sergio Gomez, based on various acts of misconduct including destruction of personal property, verbal abuse, obscene gestures, attempts to run over Gordon B. with a pickup truck, and setting off large fireworks on Gordon B.’s driveway. The order followed an evidentiary hearing and was effective for one year. Prior to its expiration, Gordon B. filed a request to renew the restraining order based on concerns that the abuse would resume once the order was terminated. He cited to two incidents in which Gomez had arguably violated the restraining order. The trial court denied the request finding that Gordon B.’s concerns were too speculative and that he had insufficient evidence for a renewal.
The appellate court reversed and remanded for further proceedings. Under the proper standard, the party requesting renewal need only show by a preponderance of the evidence that the protected party has a reasonable apprehension of future abuse if the order is not renewed. This means that the evidence must demonstrate it is more probable than not there is a sufficient risk of future abuse to find the protected party’s apprehension is genuine and reasonable. The trial court erred in requiring evidence of further abuse since the initial order, which is expressly not required under the applicable statutes.
21 Cal.App.5th 1163
Filed March 29, 2018
California Court of Appeal, Second District, Div. 6
By Golnaz Yazdchi
Sheppard Mullin Richter & Gampton LLP
P.D. suffered from schizophrenia, and the Public Guardian sought an LPS conservatorship on the ground that P.D. was gravely disabled as a result of a mental disorder. The trial court gave the jury two special instructions concerning the possible consequences of an LPS conservatorship. In the first special instruction, the trial court explained that an LPS conservator would have the right to require the conservatee to obtain medical treatment, to place the conservatee in a facility, and to receive and expend funds for the conservatee. In the second special instruction, the trial court provided information concerning the duration of the LPS conservatorship. The jury found beyond a reasonable doubt that P.D. was gravely disabled as a result of a mental disorder. P.D. appealed, arguing that the special instructions confused the jury as to what matters it could consider in determining whether or not P.D. was gravely disabled, which violated P.D.’s due process rights.
The Court of Appeal affirmed. The trial court erred when it instructed the jury about the duration and types of treatment that may be ordered by an LPS conservator, but the error was harmless. Although LPS proceedings are subject to the due process clause because significant civil liberties are at stake, they are nevertheless civil proceedings. Therefore, the rule in criminal cases that any jury instruction about the consequences of a guilty verdict is a violation of due process is not equally applicable to LPS proceedings. Here, the evidence in support of the jury’s finding was overwhelming, so although the special instructions were irrelevant to the jury’s task, they made no difference to the outcome.
20 Cal.App.5th 1132
Filed March 1, 2018
California Court of Appeal, First District, Div. 1
In prior probate proceedings plaintiff Norman Bartsch Herterich made a claim to his father Hans Bartsch’s entire estate as an omitted child on the basis that Bartsch either did not believe, or forgot, that he had a child when he executed his will. The probate court granted summary judgment against plaintiff, and concluded that substantial evidence showed that Bartsch was aware of plaintiff’s existence when he executed his will. The Court of Appeal affirmed. Plaintiff then sued defendants Arndt Peltner, the executor, and Alice Brown Traeg, the executor’s attorney, for intentional fraudulent misrepresentation, negligent misrepresentation, and fraudulent concealment. Plaintiff alleged that defendants deprived plaintiff of the opportunity to object to the probate petition because when defendants initially filed the probate petition they stated under penalty of perjury that the decedent had no children. As a result, plaintiff alleged that he was led to believe that Bartsch (his father) was not aware that he had a son, or had forgotten it, which caused plaintiff to incur significant legal fees in bringing his claim against the estate. Plaintiff alleged damages because the court relied on defendants’ alleged misrepresentations in rendering rulings adverse to plaintiff. The court granted defendants’ motion for summary judgment on the basis that plaintiff had suffered no damages from defendants’ actions because he had no beneficial interest in the estate.
The Court of Appeal affirmed, but on the basis of the litigation privilege. The Court held that even fraudulent statements made by defendants in the course of the probate proceedings were protected by the privilege when the communications occurred in the context of a judicial proceeding. The Court reasoned that the personal representative of an estate does not waive the litigation privilege by taking an oath of truthfulness under the Probate Code, and that courts have held that the litigation privilege applies to statements made in furtherance of litigation in probate matters even when the relevant communication involves fraudulent statements, forgery, or falsification of documents.
Cite as B283132
Filed January 19, 2018, Second District, Div. Five
Kerkorian executed a will in July 2013 and married Una Davis about a year later. Two days prior to the wedding, he gave Anthony Mandekic $10 million dollars with instructions to give the money to Davis outside of Kerkorian’s estate or any testamentary transfer, and Mandekic complied. The day before the wedding, Davis signed a waiver, relinquishing any right to Kerkorian’s estate, including the right of an omitted spouse. Kerkorian died a year later, and his will did not name Davis as a beneficiary. Davis filed a petition seeking a distribution as an omitted spouse. As executor, Mandekic petitioned for court approval to oppose Davis’s petition pursuant to Probate Code section 11704. The court granted Mandekic’s petition finding, inter alia, that Mandekic was familiar with the estate and Kerkorian’s intentions; that he had no financial interest having already received his distribution and he was not otherwise improperly motivated; and that his participation would be helpful in determining the rightful beneficiaries in accordance with Kerkorian’s intent.
The appellate court affirmed. On appeal, Davis argued that the lower court had misapplied section 11704 in granting Mandekic’s petition for approval to oppose Davis’s petition. Specifically, Davis argued that the lower court had failed to make an express finding that Mandekic’s participation was “necessary to assist the court.” However, the appellate court held that such an express finding of “necessity” was unnecessary because a “good cause” finding under section 11704 naturally i ncorporated a contemplated level of necessary assistance by the petitioning party. The appellate court further found that the Legislature intended the term “necessary” to mean “useful” or “appropriate” and that the lower court had not abused its discretion in finding good cause.
Cite as D070907
Filed January 23, 2018, Fourth District, Div. One
“Grandfather” Gaynor died in 1983, leaving a trust estate split three ways, one share for each of his three children and their issue. Following litigation concerning management and control of the trust, the prevailing beneficiaries filed a surcharge petition against the co-trustees, and later added James Bulen based on his alleged de facto trustee status. The beneficiaries sued for breach of fiduciary duty consisting of distributing income only to the senior generation, transferring the primary asset to an LLC to gain further control, failing to provide accountings, concealing the mental incompetence of a co-trustee, seeking modification of the trustee succession plan, and numerous other claims. Bulen filed an anti-SLAPP motion to strike the claims against him, which was denied. The court found the claims at issue were not governed by the anti-SLAPP statute.
The appellate court affirmed. To invoke the anti-SLAPP statute, Bulen was required to show that the claims against him arose from constitutionally-protected activity. The appellate court found that Bulen failed to meet this initial burden. Although Bulen’s filing of petitions related to trust litigation was constitutionally protected, the alleged breaches of fiduciary duty arose from conduct other than the protected activity. Having affirmed that Bulen had failed to meet his initial burden, the court did not evaluate the second step of the anti-SLAPP statute relating to the probability of success.